Elusive or Inflexible: Choosing between a rock and a hard place

A comparative analysis of the state policy towards refuges of two common law based democracies in Asia – Japan and India. An attempt has been made to study and understand the conduciveness of the policy set up of these two countries from the stand point of a refugee/asylum seeker.

Introduction

Asian traditions dictate that an outsider should not be turned out even when one finds it difficult to feed oneself. This long accepted part of our Asian culture followed equally by the Bedouin tribesmen and Chinese business tycoons, is not reflected in our state policies. Elusiveness and arbitrariness have plagued the bureaucracies of many nations in Asia. Though such a bureaucracy was a legacy of the west, the west has in the recent times outgrown it, specifically the European nations which have taken a more humanitarian outlook towards refugees.

The western world post second world war agreed to a convention were member states were required to follow some minimal standards in regard to their treatment towards refugees. The Convention relating to the Status of Refugees (“Convention”) was thus born. It established minimal rights for refugees and asylum seekers. The Convention attempted to resolve the problems of the past and at the same time also reflected the hesitancy of the nation states to be bothered with the problem of refugee more than to the most minimal extent.

India at this point still reeling from its independence had taken a definite stance to stay non-aligned. During this time Russia played grandfather to India and helped strengthen our defense and passed on lessons on living and applying communism. India was definitely leaning towards the eastern bloc. In such circumstances it recognized the Convention as a part of the “cold war” strategy of the western anti-communist bloc and having nothing to do with the cold war stayed away from the Convention. India’s stance during that period was best described by Rajeev Dhavan (Dhavan, 2004), in an article in The Hindu, a daily newspaper.

“It (Convention) was seen as Euro-centric and, essentially, anti-communist. Indeed, in 1953, India’s Foreign Office (through R.K. Nehru) told the office of the United Nations Commissioner for Refugees (UNHCR) that the global refugee policy was essentially part of the Cold War. It took years for the Convention of 1951 to be amended by the Protocol of 1967.” (Emphasis supplied)

This being India’s outlook about the Convention it chose not to sign the Convention or the protocol. Japan an equally (if not more) developed economic power in Asia on the other hand acceded to the Convention and the protocol way back in the 90’s. As a nation Japan is equally entrenched in the past and has a strong basis of traditions dating back to years. It is ethnically homogenous and has strong tradition of taking care of the weak, elderly and the young, has been highly closed about taking in refugees. This confusing stance of the states under consideration needs a closer look and a deeper understanding. From a refugees point of view approachability to these states would be key in assessing the relative benefits both these states

Convention: A Western Import

The Convention recognised that refugees had a right to seek asylum, though what constitutes asylum was not defined. Further the signatories to the Convention were prohibited from returning the refugees to their countries of origin. The Convention defined a refugee to be any person:

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..”

Further the Statute of the UNHCR (United Nations High Commissions on Refugees) – agreed to in a General Assembly Resolution of December 14, 1950, emphasized UNHCR’s responsibilities to promote legal protection of refugees and measures to cut the number of refugees requiring protection. It referenced voluntary repatriation, assimilation and naturalization of refugees into countries of asylum and resettlement as the durable solutions which UNHCR should be promoting (Gallagher, 1989). It also listed the circumstances under which people who were under the protection mandate would cease to be covered.

By 1960 the European refugee problem had greatly reduced in scale. However, refugee problems were burgeoning in other parts of the globe and new approaches were needed to address them. A General Assembly Resolution of 1961 recognized that where the UNHCR was confronted with a massive influx of people it might not be possible to review claims to refugee status on an individual basis. The international community, acknowledging that these mass movements of people were of concern, began to examine means of extending similar treatment to them as was extended to Convention refugees. In 1964, UNHCR’s Executive Committee recommended that the possibility of deleting the time limitation clause of the Refugee Convention be examined. A Protocol based upon recommendations of an international colloquium of legal experts was approved by UNHCR’s Executive Committee and forwarded to the General Assembly in 1966. The required minimum number of states this time including the United States quickly acceded to the Protocol, to become effective in October 1967. (Gallagher, 1989)

Thereafter suddenly the Asia-Pacific was looked upon by the western world to reciprocate and accede to the convention. The Asia-Pacific region is home to 7.7 million people of concern: they include 3.5 million refugees, 1.9 million internally displaced people (IDPs), and 1.4 million stateless people. This makes it clear that there is definitely a need for the Asia-pacific region to accede to the Convention and the protocol and start a more regional organization so that pressure can be put on the member states to liberalize their policy towards refugees.

In accordance to UNHRC reports (UNHRC) majority of the refugees originate from Afghanistan and Myanmar. Over two thirds live outside camps, mainly in urban environments where they often find inadequate protection, leading to onward irregular movement by sea. Though it is true that most countries and territories in Asia- Pacific continue to uphold their long tradition of hospitality to refugees and displaced people only 20 of them have acceded to the Convention and the Protocol and an even lesser number have a formal policy in this regard.

In this article an attempt has been made to compare the policy set up of two countries Japan and India in regard to the treatment that is met out to refugees. Both these countries are relatively developed nations in the Asia-Pacific region and have played key international roles in the past years. Japan on one hand is party to the Convention, the protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. India has not yet acceded to the Convention or the protocol and neither does it have a regional policy which is in line with international standards.

What is surprising is that even if this is the case, India is known to be a more than welcoming host for many refugees and has a relatively more liberal outlook in regard to refugees than Japan’s policy. An attempt will therefore be made to understand what policy set up is more conducive for a refugee – an inflexible and restrictive state policy which is determined to keeps its doors closed while being a party to all the required international conventions or a country which has remained dogmatic about not acceding to the Convention or the protocol and is elusive about the kind of benefits it will dole out to its refugees. It would therefore be interesting to see how these two countries are different and what the road ahead is in regard to a more hospitable refugee law or outlook.

India’s policy set up

India is neither party to the 1951 Convention on Refugees nor the 1967 Protocol. The lack of specific refugee legislation in India has led the government to adopt an ad hoc approach to different refugee influxes. The status of refugees in India is governed mainly by political and administrative decisions rather than any codified model of conduct. The ad hoc nature of the Government’s approach has led to varying treatment of different refugee groups. Some groups are granted a full range of benefits including legal residence and the ability to be legally employed, whilst others are criminalized and denied access to basic social resources.

The legal status of refugees in India is governed mainly by the Foreigners Act 1946 and the Citizenship Act 1955. These Acts do not distinguish refugees fleeing persecution from other foreigners; they apply to all non-citizens equally (HRLN, 2007). Under the Acts it is a criminal offence to be without valid travel or residence documents. These provisions render refugees liable to deportation and detention. Though lack of implementation has ensured that except for a few cases here and there no one really has been criminalised especially refugees.

Further the United Nations High Commissioner for Refugees (UNHCR) is based in New Delhi and has been involved in recognizing refugees and granting them need based and blanket allowances. Once recognized, Afghan, Burmese, Palestinian and Somali refugees receive protection from the UNHCR. Many refugees receive a small monthly subsistence allowance and all have access to the services provided by the UNHCR’s implementing partners in Delhi: the YMCA, Don Bosco and the Socio-Legal Centre (SLIC). The YMCA helps refugees to find accommodation and provides access to education for children and young adults in government schools through the provision of an education allowance. Don Bosco provides psychosocial support and vocational training such as English language classes and computer courses. It also funds other vocational courses such as beautician training and driving lessons. The support of these organizations is vital, providing a degree of support to the refugee community. In addition to these initiatives, SLIC provides legal aid, legal trainings and sensitization programmes, carries out file renewals for the UNHCR and provides naturalization assistance for eligible refugees. Despite the support provided by these organizations, the majority of refugees in India experience great hardship, both economically and socially (HRLN, 2007).

Though this has been true in the past for some time now, India’s concerns about security have had a more restrictive impact on asylum space in the country. Mixed migration flows have further complicated the identification and protection of refugees and UNHCR has significantly modified and increased its registration activities to cope with this and provide the necessary support to the Government. In the absence of a national legal and administrative framework, UNHCR, based in New Delhi, conducts refugee status determination (RSD) for asylum-seekers from non-neighbouring countries and Myanmar. UNHCR also has a presence in Chennai, Tamil Nadu in the south to support the voluntary repatriation of Sri Lankan refugees. Although India has a large population of stateless people, no accurate estimates of the number are available. UNHCR is working to identify and map stateless groups (UNHRC).

India has been absorbing refugees from the start, starting from Tibetan Refugees in 1959, the Bangladeshi refugees in 1971, the Chakma influx in 1963, the Tamil efflux from Sri Lanka in 1983, 1989,and again in 1995, the Afghan refugees from the 1980s, the Myanmar refugees for a similar period and migration and refugee movements from Bangladesh over the years. India’s ambivalence towards the UNHCR is characterised by its act of indirectly seeking its assistance through the Red Cross in the 1960s, and later allowing the UNHCR to determine the refugee status of those from beyond South Asia, asking the UNHCR to assist in verifying the voluntariness of the repatriation of the Tamils to Sri Lanka, and permitting an office in Delhi through the UNDP programme. In 1995, India, following Pakistan’s example, joined the Executive of the UNHCR. Though welcome, this halfway house seems odd since India refuses to sign the 1951 Convention (Dhavan, 2004).

We need to examine what India’s doubts about protecting refugees are all about. The `Cold War’ reasons for not having a global refugee policy have gone cold. Security could be a concern that is playing on the minds of the policy makers. Though, it is true that having a set policy in place could actually address this issue and resolve a highly porous border that presently exists. One could ascribe the present problem of not having a fixed policy to lack of political will amongst the many ruling parties and also to some extent a lack of political will.

The foremost reason for refusing to concretise a refugee protection policy is the threat of terrorism. There is no reason for sustaining such a fear. The SAARC Anti-Terrorism Protocol of 2004 ensure that suspected `terrorists’ are not treated as refugees. Under the proposed model law, India may exclude even other undesirable persons provided they are not sent back to the country of persecution. The second reason for resisting the model law is that such liberality would precipitate a flood of migrants — especially from Bangladesh. This reason is also fallacious. In fact, a proper `refugee’ law would distinguish between refugees and migrants by a fair, fast and stringent procedure.

From the perspective of a refugee, this is a good and a bad thing all depending on which country you belong to. Refugees from Tibet, Tamilians from Sri-lanka, chakmas from Bangladesh, Nepalese from Bhutan have all been well received and have even been assimilated into the mainstream society. Some refugees on the other hand have been criminalised and have been stigmatised by allegations of taking away the already scarce resources from the citizens. Refugees from Somalia are hugely discriminated and find it very difficult to either find employment or residence.

Clearly therefore there is a need to have a uniform policy that applies to all refugees equally, but what is not required a restrictive and protectionist law as exists in some other developed Asian countries like Japan and South Korea. Closing doors of immigration in the name of a progressive law has become true in case of many western countries. Europe and Australia have tightened their immigration walls with all kinds of sophisticated arguments to deal with refugees on a regional, rather than a global, basis. One other country which has done this is Japan.

Japan’s policy set up

Japan is an advanced industrialized democracy with a constitutional monarchy and a parliamentary system of government. It has a population of nearly 128 million people of which nearly 99% are ethnic Japanese. Japan joined the United Nations in 1956 but did not become a party to the 1951 Convention Relating to the Status of Refugees (the Convention)and its 1967 Protocol until 1981. These instruments were given effect in the 1981 Immigration Control and Refugee Recognition Act (ICRRA) which was revised most recently in 2004. The new ICRRA came into effect in May 2005 (Flowers, 2008).

Japan was a closed country from 1639 to 1867 and subsequently has been a country of emigration rather immigration. Not until the mid-1970s, following the arrival of Indo-Chinese refugees, was Japan faced with the issue of how to deal with refugees and asylum seekers (Sakamoto, 2013). Whilst initially reluctant to accept these refugees, and following international pressure, Japan introduced special procedures in order to facilitate their admission and settlement. Since accession to the 1951 Convention and 1967 Protocol in 1981 Japan has received 3,544 applications for asylum and has granted refugee status to only 330 cases. In addition, since the first granting of humanitarian status in 1991, there have been 284 cases where applicants have been given this alternative status.

Almost all applications for refugee status are made in country. As very few applications are officially recorded at airports and seaports concerns have been raised that potential refugees are being deported without proper consideration of their cases in contravention of the principle of non-refoulement under Article 33 of the Convention. Although many applicants remain at liberty, Japan has a policy of detention aimed at illegal entrants and over-stayers which impacts most upon asylum seekers and refugees.

There have been reports of human rights abuses of foreigners in detention. Prime examples include the denial of access to appropriate interpreter, medical and legal services as well as verbal abuse and physical ill- treatment of detainees.

It has been noticed that even though Japan acceded way back in the 80’s it has a restrictionist immigration and refugee policies and restrictionist interpretations of the 1951 UN Convention on Refugees; as a result, the definition of refugee is very narrow. It also sets the bar high to prove that someone is truly an asylum seeker, which, in turn, leads to lower than average recognition rates (Flowers, 2008).

In 2013, Japan’s Ministry of Justice (MOJ) approved only six asylum seekers’ applications for refugee status out of 3,777 cases (0.1 percent approval rate), the lowest number in 16 years. Instead of refugee status, 151 people were granted special permission by the Immigration Bureau to stay for humanitarian reasons.

The Japanese government wants to have a strict screening process on deciding who can become a refugee and who cannot. The government is afraid of the possibility of people abusing the system as a method to stay in Japan or get financial aid from the government. For instance, Japan’s Immigration Bureau in the Ministry of Justice will often reject applications on the grounds that there is insufficient evidence for prosecution; evidence which may be hard for refugees to obtain outside of their home country, especially if, for example, it is riven by civil war.

Conclusion

Strictly speaking the ICRRA is completely in line with the Convention and the Protocol, but the fact is that the Convention and the Protocol are the only the most minimum standards one has to follow in regard to accepting and determining who is a refugees.

Further the Convention does not lay down the exact procedure that needs to be followed in regard to determination of a refugee. Further in a country like Japan invariably everyone has identification papers, so to be without identification papers can be a risky affair in Japan and could lead to quick recognition and criminalization.

India being a cultural, racial and religious melting pot and many without the smallest shred of identification paper on them is a different story all together. India can be hugely arbitrary – when it comes to some it is hospitable to say the least and to some others it is discriminatory and racial. Unfortunately for India the brownie points it has gained by the efforts it has put in provide a safe haven for many refugees is clouded by the fact that is it has still not acceded to the Convention and the protocol.

Further If India wants to play a role in global affairs and make SAARC a success; it must act as a global player entitled to its just seat in the Security Council of the United Nations. But it cannot do so as long it pursues narrow policies. The South Asia region deserves better treatment. There are now ample reasons for India to accede to the Convention and the protocol on political as well as humanitarian basis.

On a closing note it should be noted that the Indian outlook towards refugees over the past years has definitely been remarkable but there is need to formulate it into an open, liberal humanitarian policy that can be equally applied to all the present refugees and the refugees that might need us in the future.

Aishwarya is a practicing lawyer in Bangalore. She has in the past worked with Jyoti Sagar Associates and Poovayya & Poovayya. She is an alumna of Symbiosis International University, Pune and Tata Institute of Social Sciences, Mumbai. During her post graduation her main area of research was environmental justice and issues relating to access to justice for the marginalized in environmental and livelihood issues.